END USER LICENSE AGREEMENT
Last Updated: 15. January 2023
This End User License Agreement (“Agreement”) governs your access to, and use of PanDao computer software, its supplements and data product ("SOFTWARE"). This Agreement is a binding agreement between you, an individual or the company or other legal entity on whose behalf you are signing (“you”), and PanDao GmbH, a St. Gallen, Switzerland, based, limited liability company (“PANDAO”).
if you are entering into this Agreement on behalf of a company or other legal entity, you hereby represent and warrant that you have the authority to bind such company or other legal entity to these terms and conditions. The company or other legal entity must ensure that all end users read and comply with this Agreement. if you are entering into this Agreement on behalf of a company or other legal entity and do not have such authority, you must not accept this Agreement and click on “i decline” below.
In the provisions of this Agreement, PANDAO refers to PANDAO GmbH, while PanDao appears in contexts relating to the SOFTWARE, tools and services we offer.
1.THE CONCLUSION OF THE AGREEMENT AND LICENSING CONDITIONS; ACCOUNT CREATION.
As a standard the conclusion of the contract occurs as a result of the acceptance by PANDAO of the Purchase Order, which is usually preceded by the delivery of the Pricing Policy and the Quotation of PANDAO. Equivalent to the acceptance of a Purchase Order may be the activation of an account and the opening of the access to the PanDao services. The Purchase Order will not be accepted if it contains content contrary to the provisions of this Agreement, the Pricing Policy or the Quotation, or for other reasons (e.g. the obstacle results from export laws). Any deviations from the terms contained in the Agreement, the Pricing Policy or the Quotation must be accepted by PANDAO in writing, in particular, in the absence of such agreements, the incorporation to the Agreement of any user's terms and conditions template (T&C) is excluded. The user's T&C cannot be used also if PANDAO has not expressly objected to their inclusion. Employees of PANDAO are not authorised to incorporate any user's T&C into the Agreement or to recognise its validity, even in part, unless otherwise expressly stated in their power of attorney.
Subject to the terms and conditions of this Agreement, PANDAO hereby grants to you personally a limited, non-exclusive, non-transferable, non-sublicensable license to use the SOFTWARE unless otherwise specified by PANDAO, any updates or supplements thereto provided to you by PANDAO. The use of the SOFTWARE is licensed, not sold, to you.
To use the SOFTWARE, you must have an account at Pandao.ch and register the license through your account. You must provide accurate account information and promptly update this information if it changes. You also must maintain the security of your account and license registration and promptly notify us if you discover or suspect that someone has accessed your account or license registration without your permission.
If needed the customisation of the SOFTWARE is possible. The scope, price and deadlines for customisation of the SOFTWARE are included in the provisions of the Pricing Policy, the Quotation and the Purchase Order, or in any other agreement or correspondence in which PANDAO explicitly confirms the conditions for customisation. As customisation requires individual agreements and programming work, we reserve that all declared customisation deadlines are indicative, i.e. exceeding them does not have the consequences envisaged by the law for untimely fulfilment of obligations (debtor's delay).
2.LICENSE RESTRICTIONS.
The SOFTWARE is the valuable property of PANDAO and is protected by copyright and other intellectual property laws and treaties. PANDAO own all right, title and interest in and to the SOFTWARE, including all copyright and other intellectual property rights therein. PANDAO reserves all rights not expressly granted to you, and except as expressly granted above, PANDAO grants no other licenses to you under this agreement, whether by implication, estoppel or otherwise. Your use of the SOFTWARE is limited to those instances, which have been licensed. You may not attempt to circumvent any methods implemented by PANDAO to limit your use of the SOFTWARE to such instances licensed. You may not (a) sublicense, loan, lease, distribute, sell or rent the SOFTWARE; (b) reverse engineer, decompile or disassemble the SOFTWARE or otherwise attempt to discover or re-create the source code to the SOFTWARE; (c) make any modification, adaptation, improvement, enhancement, translation, or derivative work of or to the SOFTWARE; (d) copy the SOFTWARE; knowingly take any action that would cause the SOFTWARE or its contents to be placed in the public domain; or (e) use the SOFTWARE for purposes for which it is not designed. The foregoing license and your use of the SOFTWARE is personal to YOU. You may not transfer your license to use the SOFTWARE to any third party or publish the SOFTWARE for others to use the SOFTWARE. You are responsible for the activities of any third parties that occur in connection with your account or license registration. PANDAO reserves the right to disable your access and use of the SOFTWARE if the suspect of an automatic or robot use is given. If any of this points are not fulfilled PANDAO will disable your access to use the SOFTWARE.
3.SUBSCRIPTION PACKAGES, LICENCES AND RENEWALS.
PANDAO offers SUBSCRIPTION PACKAGES for access to and use of the SOFTWARE (a PACKAGE) each including a maximum number of PanDao queries (called ask-PanDao-clicks) expiring after 12 months relevant ordering document. The license granted is contingent upon full payment of the applicable SUBSCRIPTION PACKAGE fees. After the receipt of the access data the chosen package will be activated. If you do not extend your license until the expiration date all remaining requests are lost. If you extend your license the remaining requests will be added to your new package.
PANDAO also offers the PANDAO SINGLE USER LICENSE assigned to a specific natural person that authorizes an unlimited number of PanDao requests and is valid for 12 months after the date of purchase. The PANDAO SINGLE USER LICENSE is valid for one single user, identified by the registered email address and is not transferable to other persons. Without written notice at least sixty days before the end of a PANDAO SINGLE USER LICENSE, you have renewed your license and PANDAO will invoice you. Performing any of the following actions entitles PANDAO to terminate the Agreement and/or extend the waiting period between two requests: (a) To enable the use of the license by others; (b) Reproduce, copy, resell the license without our prior written consent; (c) Reverse engineering any aspect of PanDao or do anything that might discover source code; (d) Develop or use any applications that interact with PanDao without our prior written consent. Since the premise of the PANDAO SINGLE USER LICENSE is the use of PanDao tools by a specific individual, we will consider exceeding the 500 PanDao requests as excessive use, indicating a violation of the terms of the PANDAO SINGLE USER LICENSE involving sharing access to the services with other individuals. In such a situation, we may request an explanation, and we reserve the right to block access to the services and immediately terminate the licence agreement for that account without the right to any refund of the prepaid licence fees. We are also entitled to apply the above measures if the limit of 120 PanDao requests is exceeded within a consecutive period of 7 days.
Both the SUBSCRIPTION PACKAGES and the PANDAO SINGLE USER LICENSE include PanDao SOFTWARE tool usage, technical support over email, product updates, upgrades to existing features and new capabilities to the SOFTWARE for the length of the subscription term.
4.SUPPORT SERVICES.
A PACKAGE or LICENSE to use the SOFTWARE, does not include - further free support services. PANDAO is under no obligation to offer you continuous support services after the expiration or termination of your subscription period. PACKAGES or LICENSES does not include any right on free updates or free upgrades of the SOFTWARE if new feature might be included by PANDAO.
5.FEEDBACK.
Any suggestions, comments or other feedback provided by you to us with respect to the SOFTWARE (“FEEDBACK”) will, as between you and PANDAO, constitute PANDAO’s confidential information. PANDAO will be free to use, disclose, reproduce, license and otherwise distribute, and exploit this FEEDBACK as it sees fit, entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise.
6.CONSENT TO USE DATA.
The SOFTWARE may periodically identify, document, collect, analyse, record, and transmit to PANDAO information about how you use the SOFTWARE and information about the device and network on which you (or anyone you allow to) access the SOFTWARE, such as your (or another user who access the SOFTWARE) computer name or device identifier, IP address and other related information. You agree that PANDAO may use this information to improve the SOFTWARE, develop new product and service offerings, and to provide SOFTWARE updates, product support, and other services to you. For more information on data that we collect and how we use it, please see our Privacy Policy on the website www.pandao.ch.
7.LIMITED WARRANTY.
PANDAO IS A SOFTWARE TOOL FOR FORMING OPINIONS ON THE PRODUCIBILITY OF OPTICAL COMPONENTS. PANDAO IS NOT RESPONSIBLE FOR THE IMPLEMENTATION OF THE RESULTS GAINED.
You acknowledge and agree that (a) the SOFTWARE may contain bugs, errors, and defects; (b) use of the SOFTWARE is at your sole risk; and (c) the entire risk as to satisfactory quality, performance, accuracy and effort is with you. Accordingly, the SOFTWARE is provided “as is,” “as available,” with all faults, defects and errors and with no warranty of any kind. PANDAO specifically disclaims all warranties (express and implied and arising by law or otherwise) regarding the licensed application and services and their performance or suitability for your intended use, including, but not limited to, any implied warranty of merchantability, non-infringement, accuracy or fitness for a particular purpose. PANDAO disclaims all liability for the use of, or inability to use, the SOFTWARE or for any loss of data. PANDAO does not represent or warrant that the SOFTWARE, also customized, will be delivered free of any interruptions, delays, omissions or errors; or in a secure manner; that any faults will be corrected; or that the operation, results, or data generated by the SOFTWARE will be error free.
PANDAO will implement and maintain appropriate technical and organisational measures to protect the data entered by the user during the use of the PanDao SOFTWARE tools, but the user is responsible for his/her data, including the data entered as part of the individually agreed customisation of the SOFTWARE to the user's needs. The user grants PANDAO the non-exclusive right to process and use the user's data in order to provide the services. The user will collect and maintain all data in accordance with applicable privacy and data protection laws, and will maintain reasonable security standards in the use of the PanDao SOFTWARE tools.
8.LIMITATION OF LIABILITY.
To the fullest extent permitted by applicable law, and subject provisions to the contrary provided in this agreement or agreed upon individually, PANDAO or its affiliates, agents, suppliers, or third party licensors shall not be liable to you or to any other party for any direct, indirect, special, incidental, exemplary, consequential, or other damages of any kind in connection with the SOFTWARE or this Agreement, however caused, regardless of the theory of liability (whether tort, contract, negligence, warranty or otherwise), and even if PANDAO or its affiliates, agents, suppliers, or third party licensors were informed of the possibility of such damages.
While PANDAO is doing its best to protect data and business, we do not warrant that our site, the SOFTWARE or the server that makes it available are free of viruses or other harmful components. PANDAO shall not be liable for any loss or damage caused by a distributed denial-of-service attack, viruses or other technologically harmful material that may infect the user's computer equipment, computer programs, data or other material owned by the user in connection with his/her use of the SOFTWARE or any PanDao services or items obtained through our site or downloading by the user of any material posted on the site or on any sites linked to it.
To the extent permitted by law, any PANDAO's liability for lost benefits (lucrum cessans) is excluded, in particular such as loss of profit, downtime, unrealised savings or damage of third parties, and in addition, the total compensation for all losses and damages caused will be limited to the amount of the fee paid during the contract year for the licence or service in question.
9.TERM AND TERMINATION.
The term of this license commences on the first to occur of your use of the SOFTWARE or your registration date. This license to use the SOFTWARE is effective until terminated or until the end of the current subscription PACKAGE or LICENSE period, whichever occurs first.
This license shall terminate automatically and immediately in the event of your breach of the terms of this agreement. Upon termination of this Agreement, you shall immediately discontinue the use of the SOFTWARE. Your obligations to pay accrued charges and fees as well as provisions contained herein that, by their nature, are intended to survive termination, including PANDAO’s rights in and to the FEEDBACK, and PANDAO’s liability limitations, shall survive any termination of this agreement.
10.EXPORT AND LEGAL COMPLIANCE.
Your use of the SOFTWARE shall comply with all restrictions arising from national or international foreign trade or customs requirements, including those relating to embargoes and other sanctions imposed (export laws/regulations) insofar as they relate to the export of software, technical data or derivatives thereof. You will not directly or indirectly export (or re-export) the SOFTWARE’s accessibility or use in violation of the export regulations. The user is solely responsible for complying with export laws concerning his / her data. You will not use or access the SOFTWARE from countries where this is prohibited by export laws.
PANDAO reserves the right to carry out the necessary checks for compliance with the export laws, and the user must, upon request, immediately provide PANDAO with the necessary information to enable the application of these regulations, e.g. confirming that an export authorisation has been obtained. PANDAO may terminate the user's subscription with immediate effect if the competent authority has not granted an export authorisation or the export laws prohibit PANDAO from providing services to the user concerned. The User shall indemnify and hold PANDAO harmless from and against any claims, actions, suits, fines, losses, costs and damages relating to the User's failure to comply with export control regulations; the User shall indemnify PANDAO for any resulting losses and costs. These provisions shall continue to apply after the expiration or termination of this Agreement for any reason.
11.GOVERNING LAW AND VENUE
This agreement and access to the SOFTWARE and the services will be governed by and construed under the laws of the SWITZERLAND, without giving effect to any conflict of laws principles that may provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Good will not apply. The courts of Switzerland shall have jurisdiction on all disputes arising e.g. from the completion, interpretation or execution of this Agreement.
12.ASSIGNMENT.
You may not assign or transfer this agreement, or any of the rights licensed hereunder, to any third party without the prior written consent of PANDAO, and any assignment in violation of the foregoing shall be null and void. PANDAO may assign this agreement to any affiliate or third party, in whole or in part, without your consent.
13.SEVERABILITY.
If any provision of this agreement is held to be ineffective, unenforceable, or illegal for any reason, such decision shall not affect the validity or enforceability of such provision under other circumstances, or of the remaining provisions hereof under all circumstances and such provision shall be reformed only to the extent necessary to make it effective, enforceable, and legal under such circumstances.
14. THIRD PARTY LOGOS
All third party logos and trademarks are the property of their respective owners, and may be registered in the United States and other countries.
15.MISCELLANEOUS.
This agreement may be modified and superseded during the subscription period, but this agreement may otherwise not be modified without the prior written consent of the parties hereto. PANDAO’s failure to exercise any of its rights or remedies under this agreement, or otherwise by law, will not be construed as a waiver of PANDAO's right to assert or rely upon those rights or remedies in that or any other instance. In the event of a conflict between the provisions of this Agreement and the contents of the Pricing Policy, the Quotation, the Purchase Order or other bilateral agreements containing individual arrangements, these documents shall take precedence, provided that any deviations from the Agreement have been expressly accepted by PANDAO.